Hammond v Stern [2013] NSWSC 70

Supreme Court New South Wales

Medium Neutral Citation: Hammond v Stern [2013] NSWSC 70 Hearing dates: 8 August 2011 Decision date: 13 February 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court declares that: (1) The costs of the proceedings the subject of the consent judgment dated 11 October 2010 are regulated by s 338 of the Legal Profession Act 2004. The Court orders that: (2) The plaintiff is to file and serve submissions in relation to costs of the proceedings by 27 February 2013. (3) The defendant is to file and serve submissions in relation to costs of the proceedings by 12 March 2013. (4) Any submissions in reply are to be filed and served by 19 March 2013. Catchwords: STATUTORY INTERPRETATION – professional negligence claim against solicitor and barrister – loss of opportunity to recover damages – settlement for $60,000 plus costs – declaration sought that costs not limited by s 338 of the Legal Profession Act 2004 – whether a claim for "personal injury damages" – whether damages "that relate to" injury to a person – declaration that costs of proceedings are regulated by s 338

COSTS – application of s 338 of the Legal Profession Act 2004 to costs of professional negligence claim – where loss of opportunity to recover damages in personal injury claim – costs regulated by s 338 Legislation Cited: Civil Liability Bill Civil Liability Amendment (Personal Responsibility) Act 2002 Civil Liability Act 2002 Civil Procedure Act 2005 Fair Trading Act (Vic) 1999 Legal Profession Act 1987 Legal Profession Act 2004 Lord Campbell's Act Supreme Court Act 1970 Victorian Civil and Administrative Tribunal Act (Vic) 1998 Workers Compensation Act 1987 Cases Cited: American International Assurance Company (Australia) Limited v Skewes [2010] VSC 307 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136 Firth v Sutton [2010] NSWCA 90 Johnson v Perez (1988) 166 CLR 351 Koh v Ku [2009] NSWDC 264 Moss v Eaglestone [2011] NSWCA 404 New South Wales v Williamson [2012] HCA 57 Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 Producers Cooperative Distributing Society Limited v Commissioner of Taxation (NSW) [1944] HCA 39 Producers' Cooperative Distributing Society Limited v Commissioner of Taxation (NSW) [1947] UKPCHCA 2 State of New South Wales v Williamson [2011] NSWCA 183 Steve Masselos & Co v Young [2011] NSWCA 352 Victoria v Commonwealth (1971) 122 CLR 353 Williamson v State of New South Wales [2010] NSWSC 229 Wilson v State Rail Authority [2010] NSWCA 198 Texts Cited: New South Wales Legislative Assembly, Ministerial statement by Premier Carr, Public Liability Insurance (Hansard), 20 March 2002 at 828 New South Wales Legislative Assembly, Second reading speech for Civil Liability Bill, Premier Carr, (Hansard) 28 May 2002 at 2085 Category: Principal judgment Parties: Harry Hammond (Plaintiff) Terence Leland Stern (First Defendant) Kevin Pierce (Second Defendant) Representation: L King SC with R Goodridge (Plaintiff) P S Braham SC with J Zerilli (Defendants) Firths - The Compensation Lawyers (Plaintiff) Yeldham Price O'Brien Lusk (Defendants) File Number(s): 2011/168843